www.elsblog.org - Bringing Data and Methods to Our Legal Madness

05 April 2006

Law Professors versus Political Scientists

How can we bridge the "great divide" between legal scholars and political scientists? (See Gerald Rosenberg, Across the Great Divide (Between Law and Political
Science), 3 GREEN BAG 2D 267, 268 (2000), and a future ELS Blog Forum on the issue co-starring Rosenberg and Frank Cross.) One option: We invited political scientist Sara Benesh to present at our Law School faculty workshop. The talk focused on our co-authored paper entitled "The Ideology of Legal Interpretation," an empirical paper assessing whether legal interpretive philosophies can be used strategically to achieve ideologically driven outcomes. Debate and discussion were fierce...Is decision-making about law or politics? Here's an example of our (preliminary!) data, looking at 7th Circuit judges.

Comments

I think both Sara and Frank have characterized Segal and Howard's article, "An Original Look at Originalism," correctly. The Abstract states:

"Typically, we find that Justices support textual or intentional arguments when they are made by liberal parties or when they are made by conservative parties, but not across the board. Multivariate analyses show that legal arguments as to text, and particularly intent, have little impact on the votes of even those Justices alleged to be originalists. Instead, ideology continues to explain their decisions."

So yes, both libs and cons on SCOTUS conveniently used it, and it was not a legal constraint on decision-making. Our data suggests that high levels of career usage of originalist tools correlates with conservative outcome. So perhaps Franks point is: why aren't liberals on the 7th circuit using originalist arguments to reach liberal outcomes? The answer seems to be that, on the 7th Circuit at least, Democratic appointees invoke originalism far less than their Republican colleagues.

Even if co-authors, political scientists and legal scholars can have a diffferent take. Thus, I may disagree with Sara... I think our results likely confirm that orginalists are more likley to be conservatives. The orginalist movement rarely finds traction with more liberal judges and scholars (except Amar; maybe Justice Black). Whereas Scalia, Thomas, and Bork are originalists. Sunstein, in "Radical in Robes," argues that Republican presidents have sought to appoint originalists to the federal bench. And Levin's "Men in Black" argues that originalist judges have been supported by the Conservative Right and objected to by the Liberal Left.

But, under either interpretation of the findings, I think they are not inconsistent with the findings of Segal and Howard.

Frank, Thanks for your interest. We'll most definitely send you the paper when it's finished.

In terms of the 93%, that number is the predicted probability of a conservative vote with all other variables in the model set at their respective means and when originalism is at its maximum value in the dataset. It is a high number; indeed, I think it's strong evidence (though many, including maybe even Jason, will disagree) that originalism is used as a means to an end -- that judge invoke originalism to justify conservative votes. On the other hand, this result could merely confirm that originalists, as many legal scholars have shown, are more likely to be conservatives. There is a slight, but significant correlation between career usage of originalism and ideology (using Giles, Hettinger and Peppers scores).

I don't think that this finding is contrary to Howard and Segal at all. They find that Justices side with those who advance originalist claims only when they agree with them ideologically. While we don't code briefs here and focus on the 7th circuit, I would say their conclusion is entirely consistent with ours; namely, that originalism is not a "legal" constraint on decision making.